workshop on ghs potential modifications to the osha hazcom ... · 10/20/2006 · title: microsoft...

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Keller and Heckman LLPServing Business through Law and Science ®

®

Workshop on GHSPotential Modifications to the OSHA

HazCom Standard

October 20, 2006

Lawrence P. HalprinKeller and Heckman LLP

1001 G Street, N.W.Washington, D.C.

[email protected]

KELLER AND HECKMAN LLPwww.khlaw.comCopyright © 2006

GHS OVERVIEW

● The Objective● The Current Situation● The GHS “Solution”● Impact of the GHS● OSHA Implementation● Closing Remarks


The Objective

● Cost-effective, PC, international legal framework for:

Identifying the health, physical and environmental hazards of chemical substances and mixturesCommunicating that information through labels and safety data sheets

● Does not address training issues


The Current Situation

● International Regulatory SceneHighly advanced specification – based chemical control systems (e.g. EU – backed up by universal risk assessment)Reasonably advanced, performance-based chemical control systems (e.g., U.S.) Less advanced chemical control systems

● ConsequencesPatchwork of inconsistent and incompatible requirementsEHS: inconsistent, incompatible and confusing informationTrade: trade barriers, no level playing field


The GHS Solution

● Reality of CircumstancesTraditional country-by-country rulemaking would never workApproach:

PC agreement on no reduction in protectionsBlended the ISO process (without formalities) with the international treaty process (without Senate approval)

● Inevitable outcome: modified EU system

Harmonized Classification & Labeling Scheme Specification-based (rather than performance-based) draft model international regulationAppears to leave little room for flexibilityHarmonization v. Uniformity


Potential Impact of TheGHS on Trade

● Impact on International TradeMay* substantially reduce trade barriers for advanced chemical control programs (high performers)May* create elevated level playing field for high performers WILL create greater trade barriers to low performersShould assist those with limited programs seeking to improve

*”May” means “should within a decade absent new trade barriers”


Potential Impact of GHS on OSHA Requirements

● HCS CoverageOver seven million workplaces Approximately one million products.

● Huge Impact on All StakeholdersChemical importersChemical manufacturers and their employeesChemical users and their employeesOSHA personnelEmergency respondersConsultantsInsurance carrier loss control personnel


Potential Impact of GHS onOSHA Requirements

● Manufacturers (shipped chemicals)Retrain everyone who performs hazard determinations, or prepares MSDS or labels*Perform testing to new classification criteria or expose your company to the toxic tort law risks of not testingRedo every hazard determination

New thresholds, bridging principles, SARsRevise every label & MSDS*Distribute updated MSDSs*Respond to inquiries* Manage dual system requirements


Potential Impact of GHS on OSHA Requirements

● Manufacturers (in-plant chemicals)Retrain everyone who reviews incoming MSDSs & labels, or uses chemicalsReview incoming labels and MSDS, and compare with prior versionsRe-determine where hazardous chemicals are presentPerform new hazard assessments per the Respiratory Protection, PPE and Subpart Z Standards, GDC (control banding?) and proceed accordingly

Develop internal PEL if no OSHA PEL (new APF Rule)


Potential Impact of GHS onOSHA Requirements

● UsersRetrain everyone who reviews incoming MSDS & labels, or uses chemicalsReview all incoming MSDS and labels and compare with prior MSDS and labelsFile new MSDS in databaseRe-determine areas where hazardous chemicals are presentPerform new hazard assessments per the Respiratory Protection, PPE and Subpart Z Standards, GDC (control banding?) and proceed accordingly

Develop internal PEL if no OSHA PEL new APF Rule)


Current OSHA-Compliant Label


Current EPA-Compliant Label


Current WHMIS-Compliant Label


GHS – Inner Package


GHS Label-Shipping


Potential Tort Law Impacts of GHS

● New chemical testing to apply new chemical classifications

● Impact of required statements on recommended uses and restrictions on use

● Use of standardized language (+/-)

● Consider weight of evidence v. current single test rule


Potential Impact of GHS on EHS?

● Eliminate incompatibilities and inconsistencies

● More uniformitySubstance Format

● Pictograms overcome language & reading barriers (mandate)

● Facilitate control banding (voluntary at least for now)

● Effective training is critical


CYNIC’S SCHEDULE FOR GHS IMPLEMENTATION BY OSHA

● GHS Implementation ProcessANPRM: after EU proceeded, just before electionsSBREFA Small Business Panel?Rulemaking – NPRM, hearings, comments, etc.Final Rule Correction NoticeEffective Date(s)(First) Phase-in period beginsCompliance InstructionSmall Business GuidanceRevised Compliance InstructionRevised Small Business Guidance DocumentRulemaking to adopt changes to the GHS(First) Phase-in period ends


OSHA Rulemaking Criteria

● TraditionalReduce significant riskFeasible (technical & economic)Most cost-effective approachPerformance basedPeer review? (DQA/IQA)Paperwork burdenImpact on small businesses

● or Reduce Costs of Compliance (improve cost-effectiveness)


CONCLUSION

● GHS has great long term potential● Adoption of a GHS rule is expected ● GHS presents serious policy concerns

Federal agency effectively delegating its rulemaking authority to EUEHS standard driven by trade benefitsIs there a mechanism to ensure trade benefits are realized?How do we avoid an endless stream of added regional or national requirements?Unclear whether OSHA can satisfy statutory criteria if challengedHow will small business meet this challenge?

● Should OSHA consider GHS “Lite” (e.g., eliminate existing incompatibilities and establish uniform MSDS formats) for purely domestic operations


GLOBAL HARMONIZATION

● QUESTIONS?

workshop on ghs potential modifications to the osha hazcom ... · 10/20/2006 · title: microsoft...

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